Carvalho v. Associated Brands Inc.

Filing 53

DECISION AND ORDER adopting Report and Recommendations in its entirety re 43 Report and Recommendations.; granting 28 Motion for Summary Judgment. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/31/17. Copy of Decision and Order sent by first class mail to Plaintiff. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ADAM CARVALHO,
Plaintiff,
-vs-

No. 1:15-CV-00072(MAT)
DECISION AND ORDER

ASSOCIATED BRANDS, INC.,
Defendant.

I.

Introduction
Pro

se

plaintiff

Adam

Carvalho

(“plaintiff”),

a

former

employee of defendant Associated Brands, Inc. (“defendant”), brings
this

action

pursuant

to

the

Americans

with

Disabilities

Act

(“ADA”), as amended, 42 U.S.C. § 12101 et. seq., asserting claims
of

discrimination

and

retaliation.

This

case

was

originally

assigned to District Judge Richard J. Arcara, who referred it to
Magistrate Judge Michael J. Roemer for consideration of the factual
and legal issues presented, and to prepare and file a Report and
Recommendation (“R&R”) containing a recommended disposition of the
issues raised in defendant’s motion for summary judgment pursuant
to Fed. R. Civ. P. 56. Judge Roemer issued an R&R on May 13, 2016,
in which he recommended that defendant’s motion be granted in its
entirety. See doc. 43. On May 31, 2016, plaintiff filed objections
to the R&R. See doc. 44. For the reasons discussed below, the Court
adopts the R&R and grants defendant’s motion for summary judgment
in its entirety.

II.

The Report and Recommendation1
Defendant’s motion for summary judgment argues that plaintiff

has failed to come forward with any evidence of discrimination,
hostile work environment, or retaliation. See doc. 32 (Memorandum
of

Law

in

Support

of

Summary

Judgment

Motion

[doc.

28]).

Judge Roemer’s R&R recommends that defendant’s motion be granted in
its entirety. Specifically, Judge Roemer’s R&R finds that plaintiff
has failed to establish two claims of failure to promote, because
the first (regarding a September 24, 2012 promotion) was untimely
and because the second (regarding an August 2013 promotion) was
supported by defendant’s legitimate, nondiscriminatory reasons. See
doc. 43 at 11-18. Second, the R&R finds that plaintiff has failed
to

come

forward

surrounding

with

defendant’s

credible
alleged

evidence
refusal

to

of

discrimination

treat

certain

of

plaintiff’s absences as FMLA-qualifying and in denying him an
interview for a promotional position. See id. at 18-21. Third, the
R&R finds

that

plaintiff

failed

to

establish

a

hostile

work

environment because the actions alleged were neither severe nor
pervasive. See id. at 21-24. Finally, the R&R finds that plaintiff
failed to establish a claim of retaliation because he failed to
allege adverse employment action and failed to show that there was
any causal relation between his protected activity and the alleged
adverse actions. See id. at 24-27.

1

This Court refers to Judge Roemer’s R&R, see doc. 43 at 2-9, for a
thorough summary of the factual background of this matter.

2

Plaintiff’s objections to the R&R consist of several disputes
with various factual and legal findings of the R&R. Defendant’s
response to the objections contends that plaintiff’s objections are
alternately baseless or merely reiterate previous arguments that
were considered by Judge Roemer in the R&R.
III. Standard of Review
Pursuant to Rule 56 of the Federal Rules of Civil Procedure,
“[t]he court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Once the movant has met this burden, the burden shifts to the
nonmovant

who

must

“come

forward

with

evidence

to

allow

a

reasonable jury to find in his favor.” Lizardo v. Denny's, Inc., 270
F.3d 94, 101 (2d Cir. 2001); see also Celotex Corp. v. Catrett, 477
U.S.

317,

325–27

(1986).

The

court

must

draw

all

factual

inferences, and view the factual assertions in materials such as
affidavits, exhibits, and depositions in the light most favorable
to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986); Celotex, 477 U.S. at 322. However, a nonmovant
benefits from such factual inferences “only if there is a ‘genuine’
dispute as to those facts.” Scott v. Harris , 550 U.S. 372, 380
(2007), quoting Fed. R. Civ. P. 56(c).
Where,

as

here,

the

party

opposing

summary

judgment

is

proceeding pro se, the Court must “read the pleadings . . .
3

liberally and interpret them to raise the strongest arguments that
they suggest.” Corcoran, 202 F.3d at 536. However, “proceeding pro
se does not otherwise relieve [the plaintiff] from the usual
requirements of summary judgment.” Fitzpatrick v. N.Y. Cornell
Hosp., 2003 WL 102853, *5 (S.D.N.Y. Jan. 9, 2003).
In reviewing a report and recommendation, the district court
“may accept, reject, or modify, in whole or in part, the findings
or
§

recommendations
636(b)(1)(C).

made

The

by

the

district

magistrate
court

“shall

judge.”
make

28
a

de

U.S.C.
novo

determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). Where “the objecting party makes only conclusory or
general objections, or simply reiterates the original arguments,
the Court will review the report and recommendation strictly for
clear error.” Zaretsky v. Maxi–Aids, Inc., 2012 WL 2345181, *1
(E.D.N.Y. June 18, 2012) (internal quotation marks omitted). Even
where a plaintiff proceeds pro se, objections to an R&R will be
reviewed for clear error where they “merely reiterate[] [his]
original arguments and state[] a general disagreement with the
outcome of the R&R.” Freeman v. Dep’t of Env. Prot., 2013 Wl
801684, *2 (E.D.N.Y. Mar. 5, 2013); see Almonte v. N.Y.S. Div. of
Parole, 2006 WL 149049, *4-5 (N.D.N.Y. Jan. 18, 2006) (explaining
that resubmitting the same arguments previously made “fails to
comply with the specificity requirement”).

The district court is

“permitted to adopt those sections of a magistrate judge’s report
4

to which no specific objection is made, so long as those sections
are not facially erroneous.” Batista v. Walker, 1995 WL 453299, *1
(S.D.N.Y. July 31, 1995) (citation and internal quotation marks and
brackets omitted).
Even on de novo review of specific objections, the court “will
not consider ‘arguments, case law, and/or evidentiary material
which could have been, but [were] not, presented to the magistrate
judge in the first instance.’” Brown v. Smith, 2012 WL 511581, *1
(E.D.N.Y.

Feb. 15,

2012)

(quoting

Kennedy

v.

Adamo,

2006

WL

3704784, *1 (E.D.N.Y. Sept. 1, 2006)); see Hynes v. Squillace, 143
F.3d 653, 656 (2d Cir. 1998) (noting that the Second Circuit has
upheld the exercise of the district court’s discretion in refusing
to allow supplementation of the record upon the district court’s de
novo review of a magistrate judge’s report and recommendation);
Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994)
(“In objecting to a magistrate's report before the district court,
a party has “no right to present further testimony when it offer[s]
no justification for not offering the testimony at the hearing
before the magistrate.”).
IV.

Discussion
Plaintiff makes various objections to the factual findings of

the R&R. The Court will consider each (as numbered by plaintiff in
his objections) in turn. For the reasons that follow, the Court
overrules plaintiff’s objections, adopts the R&R in its entirety,
and grants defendant’s motion for summary judgment in its entirety.
5

(1) Plaintiff objects to the R&R’s characterization of his
claims as brought pursuant to the Americans with Disabilities Act
of 1990, contending that he brings the action pursuant to the Act’s
Amendments

of

2008.

The

Court

clarifies,

for

plaintiff’s

understanding, that his action is brought pursuant to the ADA and
any

relevant

appropriate

amendments.

legal

Furthermore,

standards

applicable

the
to

R&R
ADA

followed

the

discrimination

claims. Accordingly, this objection is overruled.
(2)(a)

Plaintiff

objects

to

the

R&R’s

finding

that

he

separated from employment with defendant on December 23, 2013,
after suffering a non-work related injury. As defendant points out,
plaintiff failed to contest this fact at the summary judgment
stage. See Smith v. Hulihan, 2012 WL 4928904, *1 (S.D.N.Y. Oct. 17,
2012) (“[N]ew arguments and factual assertions cannot properly be
raised for the first time in objections to the R & R, and indeed
may not be deemed objections at all.”). Additionally, plaintiff’s
argument on this point actually confirms that his injury was nonwork related, and therefore this objection is overruled.
(2)(b)

Plaintiff

objects

to

the

R&R’s

finding

that

he

separated employment with defendant on September 22, 2014, arguing
that it occurred on December 23, 2013. This fact is not material to
the claims raised in this case, and therefore this objection is
overruled.
(3)(a) Plaintiff objects to the R&R’s finding that defendant’s
leave policy treats FMLA leave as excused absences which do not
6

result in “points” under defendant’s attendance policy, contending
that he was assigned one “point” for exercising his rights under
the FMLA. As defendant points out, however, plaintiff admitted at
his deposition that this attendance point was later removed after
he clarified with defendant that the absence was for an FMLArelated reason. Accordingly, plaintiff cannot now reverse his
position on this factual issue, see Smith, 2012 WL 4928904, at *1,
and this objection is overruled.
(3)(b); (7)(b) Plaintiff objects to the R&R’s finding that
defendant’s attendance policy provided that an employee who accrued
more than four attendance points was not available for promotion,
arguing that defendant did promote some employees who had accrued
this number of points. Plaintiff also objects to the R&R’s finding
that he failed to show differential treatment of similarly-situated
non-disabled employees. The R&R, however, fully considered the
exceptions

to

defendant’s

attendance

policy,

and

correctly

concluded that the reasons given for these exceptions were not
pretextual. See doc. 43 at 14-15 (explaining that plaintiff failed
to show pretext due to these exceptions, because defendant came
forward with

legitimate,

non-discriminatory

reasons

why

these

exceptions were made, and defendant established that similarlysituated

employees

Additionally,

this

to

plaintiff

objection

were

relates

to

treated

similarly).

plaintiff’s

claim

of

failure to promote for a September 2012 promotion, which claim the

7

R&R found time-barred. Plaintiff did not object to the R&R’s
correct

finding

that

this

claim

was

time-barred.

Plaintiff’s

objection is therefore overruled.
(4)

Plaintiff

objects

to

the

R&R’s

finding

that

he

was

approved for FMLA leave on July 13, 2012. This fact is not material
to the claims raised in this case, and therefore this objection is
overruled.
(5)(a); (7)(d) Plaintiff objects to the R&R’s finding that,
following plaintiff’s application for a promotion, defendant later
determined that a position was not needed and elected not to fill
the position. This finding is fully consistent with plaintiff’s
admission that the position was never filled, and this objection is
therefore

overruled.

Plaintiff

also

objects

(in

objection

no. (7)(d)) to the R&R’s finding that defendant had a legitimate,
nondiscriminatory reason for not promoting him in August 2013.
However, as the R&R correctly found, defendant established that it
did not promote anyone to the position because it determined the
position

was

not

needed,

which

constituted

a

legitimate,

nondiscriminatory reason that plaintiff has failed to rebut with
evidence of pretext. See doc. 43 at 17-18. Accordingly, these
objections are overruled.
(5)(b) Plaintiff objects to the finding that coworkers Laurie
Taylor, Dustin Kingdollar, and Amir Cleveland were “the only
individuals that applied for their shifts.” Doc. 44 at 6. This

8

objection relates to plaintiff’s claim of failure to promote for a
September 2012 promotion, which claim the R&R found time-barred;
plaintiff has not objected to the finding that the claim is timebarred. Additionally, the R&R correctly reasoned that exceptions
were made for promotions for these employees based on legitimate
and nondiscriminatory reasons, and defendant proffered evidence
that individuals similarly-situated to plaintiff were similarly
treated. See Doc. 43 at 14-15. Accordingly, this objection is
overruled.
(6)(a); (6)(c) Plaintiff objects to the R&R’s finding that
plaintiff was not informed of an interview for a promotion. These
objections are overruled because the position was never in fact
filled, and therefore plaintiff failed to establish that a position
was available for purposes of his failure to promote claim.
(6)(b) Plaintiff objects to the R&R’s finding that defendant’s
human

resources

absence

on

(“HR”)

August

16,

director
2013

“determined

would

be

treated

that
as

plaintiff’s
excused

and

therefore would not result in attendance points.” Doc. 44 at 7.
This objection, to the extent it can be deciphered, relates to a
fact that is immaterial to the legal disposition of plaintiff’s
claims. The objection is therefore overruled.
(7)(a) Plaintiff objects to the R&R’s finding that he was not
qualified for a promotional supply position job. This objection

9

relates to the failure to promote claim which the R&R correctly
found time-barred, and therefore the objection is overruled.
(7)(c) This objection does not raise a challenge to any
portion of the R&R and is therefore overruled.
V.

Conclusion
For the reasons stated above as well as those set forth in the

R&R, the Court hereby adopts the R&R (doc. 43) in its entirety.
Defendant’s motion for summary judgment (doc. 28) is granted in its
entirety.

Plaintiff’s

objections

to

the

R&R

(doc.

44)

are

overruled. The Clerk of the Court is directed to close this case.

ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

January 31, 2017
Rochester, New York.

10